Yuen Chun-shing v. The Queen

HCMP000051/1976

IN THE SUPREME COURT OF HONG KONG

(CRIMINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 51 OF 1976

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Coram: Cons, J.

Date of Judgment: 9 February, 1976.

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JUDGMENT

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1. This is an application for bail pending appeal. The applicant, a young man of 17 years, was convicted of being a member of a triad society. The evidence against him was a statement made by him in which he admitted his membership and other matters. This statement was proved by two police officers. In his evidence he alleged that it was untrue and was the result of improper pressure imposed by the officers.

2. Four grounds of appeal have been filed but it is only necessary at this stage to mention one. This concerns the introduction of certain evidence at the commencement of the trial. The matter arose in this way.

3. It appears to be a custom in the North Kowloon Magistracy that when a plea of not guilty is entered to a charge of this nature the presiding magistrate should ask the defendant whether he has any complaints against the way in which he has been treated by the police and to record the answer that is given. Then a date is fixed for the actual hearing of the charge usually before another magistrate. The record in the present instance apparently indicates that this custom was duly followed and that the applicant then answered that he had no complaint. When at the commencement of the trial proper the line intended to be taken by the defence somehow became known to the trial magistrate the magistrate very properly disclosed this question and answer to counsel for the applicant. Counsel immediately took instructions and then challenged the accuracy of the court record. It was perhaps this challenge that misled the magistrate into the error which followed. The challenge was misconceived. The record contained in the court file of matters that have occurred before trial is not in itself evidence at the trial. If any of those matters is of probative value it must be proved in the usual way by a witness of witnesses who can speak thereto. In the present instance that question and answer was of the utmost importance. It would have been used by the prosecution to discredit the applicant and to rebut his evidence of improper pressure. But it was not adduced from witnesses in the normal manner. The moment that counsel raised his challenge the magistrate called for the interpreter from the earlier court to describe on oath the procedure adopted there. After hearing that evidence and explanation he was apparently satisfied and proceeded to hear the substantive issue. Defence counsel was given the opportunity to cross-examine the interpreter but it does not seem that he was given at that stage the opportunity to call evidence. The procedure adopted was, as it were, a one-sided quasi voire dire. In my opinion that procedure should not have been adopted. Not only was it an incorrect way of introducing evidence but it could easily give, and perhaps in this case did give, a false impression that the magistrate was taking a personal interest in the prosecution. In the circumstances I think there is a good probability that when the appeal itself comes before this court there will be an order for re-trial upon this ground.

4. That would in normal circumstances be sufficient reason for granting bail pending appeal. However, the circumstances are not normal, in that in this instance sentence has not yet been passed. Upon conviction the magistrate remanded the applicant in custody for two weeks pending reports from a probation officer and from the detention centre. Those reports are not yet to hand. Nor, if bail is granted, will the latter come to hand until after the appeal is decided, for the presence of the applicant in the detention centre is a necessary prerequisite for the report. In that sense, by granting bail, this court would be interfering at an interlocutory stage in magisterial business, an interference not usually countenanced: Whitney Gill Newton v. Ernest Edward Walker⁽¹⁾. On the other hand it is now firmly established that an appeal against sentence is a matter separate and distinct from an appeal against conviction: Reg. v. Tam Kun-shing⁽²⁾. It must therefore be technically feasible to pursue an appeal against conviction before sentence is passed. This is not a course to be generally encouraged, but after much hesitation I have come to the conclusion that in the particular and peculiar circumstances of this case the interests of justice would best be served by granting bail to the hearing of the appeal. It is of course a matter for the magistrate what course he adopts now with regard to the passing of sentence but probably he will think fit to defer the question until a decision has been given on the appeal.

Representation:

B. van Buuren (H.H. Lau & Co.) for applicant.

Mr. Whetter, C.C., for Crown.

(1) [1975] H.K.L.R. 317

(2) [1975] H.K.L.R. 128